G.R. No. 19295. November 20, 1923

Emilio G. Mapua, the plaintiff in this case, recovered in the lower court on
a default judgment, from the defendants jointly and severally, the sum of
P38,200, representing double the amount which he had lost in a game of
monte, with legal interest from January 30, 1922, and with costs. The
defendants appeal and assign six errors.

The record before us and ancillary records in other cases are perfect
examples of professional carelessness, closely akin to gross negligence in
pleading and practice. This will partially explain why the court has had the
case under advisement for so long a period of time, and why it is now necessary
to pick our way as best we may through an accumulation of uncertain data to as
just a conclusion as is possible.

Records Nos. 19413^[1] and 18133,^[2] the first a civil action brought by Felix
Mendoza, one of the instant defendants, against Emilio G. Mapua, the instant
plaintiff, and the second, an original action in mandamus brought by Emilio G.
Mapua, the present plaintiff, against Felix Mendoza, one of the instant
defendants, and Judge of First Instance Harvey, disclose that in these
proceedings, Mapua set up a counterclaim for P38,200. But this was denied by the
trial court and this denial was sustained here on the ground that a joint debt
may not be set up against a separate demand. Encouraged, nevertheless, by this
intimation, Mapua instituted the present action in the Court of First Instance
of Manila against Felix Mendoza, and Prudencio Navoa and his wife Isabel Pelayo
(No. 19295).

The situation can best be visualized by making first a statement of the case
which will disclose the outstanding proceedings and dates. Then our next task
will be to apply the procedural law to the facts; after which, we shall be in a
position to give attention to the merits of the controversy.

Turning directly to the record and the bill of exceptions, the following is
noted:

Plaintiff’s complaint was filed in the Court of First Instance of Manila on
January 30, 1922. Summons were issued and served on the defendants that same
day. As is customary, the latter were required to enter their appearance in the
office of the clerk of the Court of First Instance of Manila within twenty days
after the service of the summons, and to answer the complaint of the plaintiff
within the time fixed by the rules of the court, which is ten days after
appearance. The attorneys for the defendants, however, waited until February
21st of the same year to enter their appearance. On the supposition that this
appearance was in time, and this point is not questioned, the defendants then
had ten days within which to demur or answer.

No action having been taken by the attorneys for the defendants up to and
including the last day permitted by the law and the rules, on March 6, 1922, the
attorney for the plaintiff moved for a default judgment, and on this motion the
trial judge noted as of March 8, 1922, “Como se pide.” The proper orders for
default were made on March 9 and March 11, 1922.

It appears that the attorneys for the defendants had presented in court on
March 7, 1922, a motion for a bill of particulars, without, however, proving
service on the attorney for the plaintiff. On March 13, 1922, the attorneys for
the defendants renewed their motion for a bill of particulars and asked that the
declaration of default be set aside. Copy of this unverified motion was received
by the attorney for the plaintiff. Said motion was amended and amplified on
March 17, 1922, in another motion which was subscribed to by counsel before a
notary public.

In the meantime, however, trial was had on March 14, 1922, without the
presence of the defendants, and the case for the plaintiff was submitted. The
trial court thereupon rendered judgment and handed down an appropriate order on
the motions to raise the default against the defendants. The decision set out
the complaint and the various steps in the proceedings, made findings of fact
based on the testimony for the plaintiff, and, in conformity with the Gambling
Law, Act No. 1757, gave sentence in favor of the plaintiff and against the
defendants for P38,200, with legal interest and costs, as above indicated. The
subsequent order on the motions to set aside the default against defendants
stated various reasons leading to the conclusion that there was no ground for
allowing said motions.

On appeal in this court, after the passage of considerable time, the bill of
exceptions and the briefs were finally presented and the case was placed on the
December, 1922, calendar. It then came to the knowledge of the court, through a
motion filed by attorneys for the appellants after the case was submitted for
decision, that the stenographic notes had not yet been written up and elevated
to the appellate court. The evidence, however, is now before us.

The law applicable to the foregoing incidents in this case is full and clear.
Abridging its provisions somewhat for the appropriate sections of the Code of
Civil Procedure and the Rules of Court are, of course, familiar to the
profession; the Code provides, in part, that the only pleadings allowed on the
part of the defendant are (1) the demurrer to the complaint, and (2) the answer.
(Sec. 89.) The defendants had ten days after they had entered their appearance
to serve and file their demurrer or answer to the complaint. (Rules of the Court
of First Instance of the Philippine Islands, No. 5.) The court could, however,
in its discretion, have allowed an answer or other pleading to be made after the
time limited by the Rules of the Court for filing the same. (Code of Civil
Procedure, secs. 2, 110; Unson vs. Abrera [1909], 14 Phil., 146.) But if
a defendant fails to appear at the time required in the summons or to answer at
the time provided by the Rules of the Court, the court shall, upon motion of the
plaintiff, order judgment for the plaintiff by default and shall proceed to hear
the plaintiff and his witnesses, and to render final judgment. (Code of Civil
Procedure, sec. 128.)

It is perfectly obvious that the defendants did not file their demurrer or
answer to the complaint within the period fixed by the Code and the Rules. Nor
did they make proper representations to secure additional time within which to
present an answer or other pleading. Judgment by default was thus properly
rendered, unless there was some special reason for taking the case out of the
general rule.

For a motion to set aside a default judgment to prosper, the moving party
must show by an affidavit of merits that if the default is set aside, he has a
just and valid defense to present. Motions to set aside judgments by default are
addressed to the sound discretion of the court. (Coombs vs. Santos
[1913], 24 Phil., 446; Daipan vs. Sigabu [1913], 25 Phil., 184.)

The situation here is somewhat complicated by the action of counsel for the
defendants in filing a motion for a bill of particulars instead of presenting
either a demurrer or an answer. They assert that as this motion was pending when
the order of the default was made, it should be construed as tolling the time
for them to demur or answer. It is, however, not incumbent upon us to settle the
interesting question of whether the pendency of a motion to make the plaintiffs
plead more definitely, or to file specifications, so as to furnish the adverse
party with complete information as to the claims which he is required to meet,
in conformity with section 108 of the Code of Civil Procedure, extends the time
to demur or answer. While it is generally irregular to enter judgment by default
whiles motion remains pending and undisposed of, yet, where such motion is filed
out of time, it would not be reversible error to enter a judgment by default.
(There can be noted the cases of Naderhoff vs. Geo. Benz & Sons
[1913], 25 N. Dak., 165; 47 L. R. A., 853; D. S. Register & Co. vs.
Pringle Brothers [1909], 58 Fla., 355; Shinn vs. Cummins [1884], 65 Cal.,
97; Higley and Higley vs. Pollock [1891], 21 Nev., 198; Plummer
vs. Weil [1896], 15 Wash., 427, holding that the motion filed by the
defendant for a bill of particulars, is sufficient ipso facto to extend
the time for answering.)

Without deciding, therefore, if the application for a bill of particulars
extends the time for the defendants to demur or answer, it is sufficient to say
that the application for such an order must be seasonably made. Here, as the
defendants neither demurred nor answered, or filed their motion for a bill of
particulars in time, and as their motion to set aside the default judgment
showed no meritorious defense and was in itself defective, we reach the
conclusion that there was no abuse of discretion on the part of the trial judge
in proceeding as he did and in refusing to set aside his order of default
against the defendants.

On the merits, little need be said. The complaint alleged, and the plaintiff
proved to the satisfaction of the court, that in a game of monte
conducted by Felix Mendoza, Prudencio Navoa and Isabel Pelayo, the plaintiff was
the loser to the extent of P19,100 as disclosed by the checks of record. Our
Gambling Law permits any person who loses any money or valuable consideration or
thing in any gambling house, or at any prohibited game such as monte, or
his heirs, executors, administrators, or judgment creditors to recover within
three years thereafter the money, consideration, or thing, together with an
additional sum equal to the value thereof from the persons in charge of the
game, or in control of the gambling house. The only doubtful point is as to the
liability of Isabel Pelayo; but as to her, construing the provisions of articles
1406 and 1411 of the Civil Code in relation with sections 6, 7, 8 and ] 1 of the
Gambling Law, we decide that she is jointly and severally liable with her
codefendants. (See Manresa, Comentarios al Codigo Civil, vol. 9,
p. 645.) Moreover, no specific assignment of error is made or argued to this
end.

While the records under consideration disclose that the plaintiff Emilio G.
Mapua is a gambler who, not content to accept his losses without murmur, has
seen fit to take advantage of the law to recoup himself, and while his action
engenders no sympathy, we have, nevertheless, to apply the law, and in so doing
find present no reversible error which would warrant us in disturbing the
appreciation of the case as made by Judge Harvey.

Judgment is affirmed with costs against the appellants. So
ordered.

Araullo, C.J., Johnson, Street, Avanceña, Villamor, Ostrand,
Johns, and Romualdez, JJ., concur.

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^[1] Promulgated February 8, 1923, not
reported.

^[2] Decided January 9, 1922, by
resolution.